He gets worse.
Apparently he's been having an email dialogue with Rochester Institute of Technology professor David Ross, a mathematician. A source shared one of these emails with me. If you think that was uncouth, rest assured that Professor Germain sent the email in question not just to Professor Ross, but also to — to — Jesus Christ, how many people is that? Has he never heard of the CAN SPAM Act? I'm too lazy to count those email addresses. It looks like about 20 lines of them, maybe 60 to 80 people. And he addresses them as "Dear Friends and Detractors." So I think I'm not in Wikileaks territory here, is what I'm saying. [Edit: even if, as I am now told, Prof. Germain was merely offering a reply-all to someone else's widely distributed email, his choice to voice what comes below to such a wide audience is meaningful, as you'll see.]
Anyway, Professor Germain's email further illuminates the values and attitudes that would lead an academic to embark on an investigation of a law student for writing a blog containing broad, obvious satire. He begins:
Dear Friends and Detractors:
I have spent a great deal of time responding to Professor Ross’s email questions and providing him with additional information.
Note the light touch Professor Germain uses in implying weary martyrdom resulting from his work replying to his detractors. It's a level of subtlety that distinguishes the Professor from a 13-year-old girl heaving a loud sigh at being asked about her homework again by her totally unfair parents.
He has been polite to me, and has recognized that the blog at issue in my case was less than aspirational (I will not quote his comments without his permission – maybe he will share his views with you).
Let's give Professor Germain the benefit of the doubt and decide that "less than aspirational" is gentle self-deprecating humor. The alternative is too grim. What kind of law professor, tasked to determine whether speech ought to be punished, focuses on whether the speech is aspirational — that is, directed to high-minded aims of which the professor approves? (Answer: a born censor.)
But we just don’t see the law the same way. I have been a practicing lawyer for 25 years, and a law professor for the past 8 years. Mr. Ross is a mathematician. You will have to decide which of us has a better understanding of the law.
At this point Professor Germain careens from inappropriate affect directly into cringe-inducing hubris. It's one thing to throw down with argumentum ad verecundium if you're arguing about pirating Weezer on an internet forum under the handle LAWD00D69. It's quite another for a tenured law professor to resort to argument by authority in the second paragraph of an email to a large crowd of professors. It's as good as a confession that you can't back your argument with cases or statutes or actual legal analysis.
And it's an unusually silly instance of argument by authority. The legal principles at issue here are neither complex nor obscure. Either Syracuse, a private entity, is going to punish people based on whatever speech restrictions it cares to devise, or its going to live up to its promises and stated principles and act as if its bound by the First Amendment. If it does that, the real-world analysis of Audaer's satire is straightforward.
Moreover, it's an unusually foolhardy argument by authority. Professor Germain "teaches and conducts research in the areas [sic] taxation, commercial law and bankruptcy and corporate law." He's arguing freedom of expression with the lawyers, founders, directors, and advisors of FIRE. For him to invoke argument by authority is roughly like me proposing to settle an argument with Brad Pitt and Angelina Jolie with a swimsuit competition.
Professor Germain's sneer at Professor Ross is pride talking. Professor Germain should have consulted a better authority about pride.
1. There are limitations on the ability to bring legal claims. They are called statutes of limitations. In the real world, investigations can go on for years before charges are brought. Many claims (like murder) have no statutes of limitations. In my world, claims against a student must be brought while the person is a student. After all, we can only impose academic sanctions. As long as they wish to attend our institution, we can bring charges under our rules. You can determine whether having potential charges “hanging over your head” for two months is too long. Suffice it to say that at this point the student has asked me to delay filing any charges, and I am doing so at his request for the time being.
Suffice it to say that Professor Germain is misleading his audience. He began his investigation in October. Len Audaer informs me that he and his counsel reached out to Professor Germain in December when they still hadn't heard anything, and it was only then that Audaer's counsel asked Germain not to make a charging decision until he had a choice to negotiate. The implication that Audaer has caused delay is false. Moreover, if Syracuse is living up to its rather dreadful architecture-based First Amendment promises and evaluating Audaer's speech based on recognized free speech principles, it shouldn't take two days, let alone two months, to evaluate whether the satirical blogs merit any sort of punishment. Read the handful of blog posts here and here, or at Audaer's site. This ain't mathematics. It's too obvious to be a good hour-long law school exam.
Of course, if Professor Germain and Syracuse are not following basic First Amendment principles — if they are part of the movement to undermine free speech principles under the guise of harassment and anti-discrimination concepts — then it might take time. But what are the chances of that?
2. I don’t want to comment on whether a particular student is innocent or not. That will be determined by a hearing panel on the basis of evidence that Mr. Ross has not seen if I file a complaint. Of course before bringing a complaint, I have to decide on the basis of the evidence I’ve learned from my investigation whether I think the student is innocent or guilty. The presumption of innocence applies to the court in the proceeding, not to the prosecutor. Otherwise, a prosecutor would never be able to bring charges.
True enough. But once again, how long should it take to decide based on those blog posts of whether Len Audaer is "guilty" of anything — if Syracuse is actually serious about respecting free speech principles?
3. Mr. Ross seems to believe that all terms like “harassment” need to be defined with mathematical precision to be valid. That’s just not a correct statement of how the law works. Harassment is an English word with a well understood standard usage and meaning. While it may be defined in specific ways in some codes, a rule can also use a term for its standard English meaning. That is how the law school has chosen to use the term. It may not satisfy a mathematician’s desire for absolute clarity, but it doesn’t have to do so. Of course, any student charged with a violation of our student code is free to advance the views of Mr. Ross in his defense, and it will be up to the hearing panel to determine whether the word “harassment” is so vague as to give no indication of what conduct might constitute a violation.
Anyone can be snide about communications or sociology or drama; it takes a law professor to be snide over a sustained period of time about math.
Here's the thing — if Professor Germain and Syracuse are not serious about their commitment to free expression, then "harassment" justifying official sanctions may, indeed, be based on the dictionary or on "standard English meaning" or on the aspirational beliefs of a university committee or on Professor Germain's personal feelings. But if Germain and Syracuse are looking to First Amendment principles, then there are a wealth of cases explaining the line between free speech and actionable harassment. If they are serious, Germain and Syracuse could look at a case like, say, Rodriguez v. Maricopa Cty. Community College District:
Plaintiffs no doubt feel demeaned by Kehowski's speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs' suit. Their objection to Kehowski's speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio,395 U.S. 444, 448-49, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Saxe v. State Coll. Area Sch. Dist.,240 F.3d 200, 204 (3d Cir.2001); DeAngelis v. El Paso Mun. Police Officers Ass'n,51 F.3d 591, 596-97 (5th Cir.1995). "There is no categorical `harassment exception' to the First Amendment's free speech clause." Saxe, 240 F.3d at 204; see also United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, ___ L.Ed.2d ___ (2010) ("The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.").
Similarly, if Syracuse and Professor Germain are serious about freedom of expression, then they could take vagueness analysis seriously rather than sneering at it. If they believe the law is whatever they say it is, they probably won't.
4. I have shown Mr. Ross that the statements made by FIRE are misleading and inaccurate. Although he held me to an extremely high standard when I correctly quoted his statement without the preamble, he has strained himself to interpret FIRE’s statement to be based on some truth, and that’s apparently good enough to leave his bold assertion of FIRE’s perfect
5. I received many emails from people on the list who have dealt with FIRE and Mr. Ross before, and advised me that there was no point in trying to reason with either of them. While I don’t think Mr. Ross intends to mislead in the same way that FIRE has, I believe he has so committed himself to supporting FIRE that he is unable to see the flaws in their methods – even though their methods are the very antithesis of his beliefs in honest and respectful debate. Frankly, I think it’s sad. Nevertheless, I wish him and all of you well, and hope you all enjoy the holidays.
In criticizing university investigations of students for their speech, FIRE doesn't pull punches. Read Audaer's blog posts, and read FIRE's coverage, and read Professor Germain's irritated justifications, and then tell me if you think more civility and less outrage is called for. Read his evasions above, and tell me if you think FIRE is the one being misleading.
Some people are outraged by injustice. Some people are outraged by bigotry. Some people are outraged by suffering. And some people are outraged — some people simmer and seethe — when some damn interloper questions their authority. That's the outrage that moves the TSA. That's the outrage that leads to people getting arrested for contempt of cop. That's the outrage of petty authority. And Professor Germain's words show that that's what is moving him. How dare they?
But hey, what do you expect? As I've said before, the two leading influences on academic thinking about free expression on campus are head injury and tenure.
Last 5 posts by Ken White
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016